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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Civil Action No. 83-02829

MEMORANDUM

Appellant, Jacqueline Pressley, appeals an order of the District Court (C.A. 83-2829) affirming a final decision by the Secretary of the Department of Health and Human Services ("HHS" or "Secretary") denying appellant's claim on behalf of her son, Damion Pressley, for Supplemental Security Income benefits under Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 1381-1383(c) (1982). For the reasons set forth, we affirm the order of the District Court.

On October 20, 1981, appellant filed an application on behalf of her son for SSI benefits, claiming that he had been disabled since birth due to Down's syndrome. The application was denied initially, reconsidered, and denied again based on an evaluation of evidence that appellant's son was not disabled within the meaning of the Act. At the request of the appellant, the case was considered before an Administrative Law Judge . At the hearing before the ALJ on June 8, 1982, appellant appeared on Damion's behalf, without an attorney, and was the only witness.

The ALJ, in a decision dated December 16, 1982, determined that while "[t]he medcal evidence establishes that the claimant has Down's syndrome, with mental retardation [and] growth impairment," he "does not have an impairment or combination of impairments either listed in or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4 (20 C.F.R. 416.925 and 416.926)." The ALJ concluded that the appellant's son was not disabled, as defined within the meaning of the Act, and thus not entitled to SSI benefit. Appellant's subsequent request for review by the Appeals Council of HHS was denied, allowing the ALJ's hearing decision to stand as the final decision of the Secretary on April 25, 1983. In August 1985, the District Court affirmed the final decision of the Secretary, denying appellant's application for SSI benefits. This appeal followed.

Appellant claims that the findings made by the ALJ, that Damion's physical and mental impairments did not meet or equal the criteria for disability set out under any section of Appendix 1, are unsupported by substantial evidence. Any findings of fact by the Secretary must be accepted as conclusive by a reviewing court "if supported by substantial evidence." 42 U.S.C. § 405(g); see Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). Substantial evidence has been defined to mean "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the Secretary applies an imporper legal standard to the evidence, the decision must be reversed. See, e.g., Griffis v. Weinberger, 509 F.2d 837, 838 (9th Cir. 1975).

In order to qualify for benefits under Title XVI of the Act, the burden of proof rests with the individual claiming disability. 42 U.S.C. 1383(c); see Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840 (3d Cir. 1974). The Secretary decided that appellant's son was not disabled for purposes of entitlement to SSI benefits under the Act. The District Court found that the record indicated that the Secretary gave due consideration to all the objective evidence of record and to the testimony of appellant. We agree.

The District Court carefully reviewed the record of Damion's mental and physical development in affirming the Secretary's conclusion that substantial evidence did not support a lag in either mental or physical growth sufficient to sustain a finding of disability. The District Court noted that in this case, where Damion's "impairments closely follow those in the list and are readily measured, an inquiry into medical equivalence is largely a useless exercise." The District Court concluded that "[w]ere the evidence of record regarding [Damion's] impairments more ambiguous . . . then a more detailed inquiry might be required." C.A. 83-2829 at 9.

Appellant claims also that the ALJ did not conduct a full and fair hearing. Appellant maintains that when she appeared without an attorney, the ALJ had an extra duty to probe and explore the leads furnished by the medical evidence submitted by the appellant. See, e.g., Hankerson v. Harris. 636 F.2d 893, 895 (2d Cir. 1980). However, as the District Court found in the instant case, the record indicates that the appellant was given an opportunity to examine all the documentary evidence and to submit her own, to make any objections or clarifications to the evidence, and to testify freely and in as much detail as she desired. We are satisfied that appellant received a full and fair administrative hearing. See Diabo v. Secretary of Health, Education and Welfare, 627 F.2d 278 (D.C. Cir. 1980); Narrol v. Heckler, 727 F.2d 1303 (D.C. Cir. 1984).

Finally, appellant contends that the ALJ should have ordered that Damion receive and IQ test or hearing test for determining developmental milestone criteria used as a basis for the adjudication of mental retardation. Appellant claims that if she had an attorney "it is likely that the attorney would have had Damion evaluated by a psychologist and/or psychiatrist." See Br. for Appellant at 19. As this issue was not raised before the Appeals Council, it is not reviewable here.

JUDGMENT

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the Court. See Local Rule 13(c). On consideration thereof and for the reasons stated in the attached memorandum, it is

ORDERED and ADJUDGED, by the Court, that the judgment of the District Court appealed from in this cause is affirmed. It is

FURTHER ORDERED, by the Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

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